Cell Phone, Computer Searches Need Prior Warrant: SCC

In a case related to the limits of police authority to search computers and electronic devices, the Supreme Court of Canada has found that police need specific, prior judicial authorization to search the contents of devices found during a premises search — a conventional warrant does not permit the search of personal computers and mobile phones found inside a residence.

The unanimous decision, R. v. Vu, 2013 SCC 60 (CanLII), recognizes privacy interests in information stored in a computer or mobile phone. In a decision released Nov. 7, the court held that searching personal or home computers, cell phones and similar devices, is an “intrusive invasion of privacy.” These rights are protected under s. 8 of the Charter of Rights and Freedoms.

Writing for the court, Justice Cromwell noted: “Although historically cellular phones were far more restricted than computers in terms of the amount and kind of information that they could store, present day phones have capacities that are, for our purposes, equivalent to those of computers.”

Special Privacy Concerns Have Evolved

At the time of the original trial, these legal issues were in flux. The court notes that device searches “give rise to particular privacy concerns that are not sufficiently addressed” by the traditional approach.

In particular, the court found that today’s devices blur the lines of what information could be expected to exist on devices. The decision notes that:

Computers contain automatically generated data, even without the owner’s knowledge

Computer files and data can stay on a hard drive, even after attempts to delete them

Computers connected to the internet permit searches of information not physically stored within the computer itself; this could greatly increase the scope of a “premises search”

With this decision, it is clear that police who intend to search computers or mobile phones will have to satisfy a justice that there are reasonable grounds to believe that any computers or mobile phones at the premises to be searched contain relevant information. Police can seize the computers and devices, but need a specific warrant before searching them.

Vu had appealed a conviction, based on the unlawful search and asking for section 24(2) relief. The Supreme Court denied the appeal. It found that the evidence need not be excluded because the violation was not serious, was made at a time when the law was uncertain, and involved a significant public issue — a marijuana grow operation.

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